In the most recent case, an Ohio teacher’s contract was not renewed after controversy erupted over a few book assignments she made with her High School English class. As recently as a decade ago, the teacher may have had a legitimate chance in court (although not neccesarily). That’s because, prior to 2006, the U.S. Supreme Court evaluated public employee free-speech claims by using a test with two basic prongs. First, the court would determine whether the speech in question touches on a matter of public concern. If it did not, the teacher would receive no First Amendment protection whatsoever. If the speech did touch on a matter of public concern, the court would proceed to the balancing prong of the test, in which it would balance the teacher’s interest in commenting upon a matter of public concern against the school officials’ interest in promoting an efficient workplace of public service.

Prior to 2006, courts sometimes sided with school officials even though the public school teachers’ speech touched upon a matter of public concern. In one 2001 case, for example, the Eighth Circuit determined that a school principal did not violate the First Amendment rights of three teachers who were ordered to quit talking about the care and education of special needs students. Subsequent appeals in the case acknowledged that the teachers’ complaints about the lack of care for special needs students touched on matters of public concern. Nonetheless, the appeals court noted that the teachers’ speech “resulted in school factions and disharmony among their co-workers and negatively impacted [the principal's] interest in efficiently administering the middle school.”

Conversely, in 1993 the Eleventh Circuit reached a different conclusion in the case of Belyeu v. Coosa County Board of Education. In this decision, a teacher’s aide alleged that school officials failed to rehire her because of a speech she made about racial issues at a PTA meeting. The aide said the school should adopt a program to commemorate Black History month. Immediately after the meeting, the principal asked to speak with her and told her he wished she had raised this issue privately rather than publicly. A lower court determined that the speech clearly touched on a matter of public concern, but that the school system’s interest in avoiding racial tensions outweighed the aide’s right to free speech. On appeal, however, the Eleventh Circuit reversed, writing that the aide’s “remarks did not disrupt the School System’s function by enhancing racial division, nor, based on the nature or context of her remarks, was her speech likely to do so.”

This is all a precursor to 2006, however, when the U.S. Supreme Court effectively eliminated the free-speech rights of public employees in its 5-4 decision in Garcetti v. Ceballos. As my friend and former First Amendment Center colleague David Hudson explains, since Garcetti “public employers are able to defend themselves against allegations of retaliation by claiming that employees’ criticisms of government operations were made as part of their official duties.”

Indeed, a pattern has emerged in this post-Garcetti world, in which it has become almost impossible to mount a successful First Amendment lawsuit based on speech that relates to the workplace. In other words, a teacher who wishes to claim First Amendment protection for decisions about curricular content must do so knowing that the same protections s/he would be afforded as a private citizen will not apply to anything so directly related to his or her official duties.

Ironically, the 1969 case that is hailed as the high-water mark for student free-speech, Tinker v. Des Moines, features these lines: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”

No longer.

(Postscript: If you’re a junkie for First Amendment law, check out my three books on the subject, including answers to all of the most frequently asked questions as they pertain to First Amendment issues in schools.)

Sam Chaltain is a DC-based educator and organizational change consultant. Previously, he was the National Director of the Forum for Education & Democracy, an education advocacy organization, and the founding director of the Five Freedoms Project, a national program that helps K-12 educators create more democratic learning communities. Sam spent five years at the First Amendment Center as the co-director of the First Amendment Schools program. He came to the Center from the public school system of New York City, where he taught high school English and History. Sam also spent four years teaching the same subjects at a private school in Brooklyn.

Sam’s writings about his work have appeared in both magazines and newspapers, including the Washington Post, Education Week and USA Today. A periodic contributor to CNN and MSNBC, Sam is also the author or co-author of five books: The First Amendment in Schools (ASCD, 2003); First Freedoms: A Documentary History of First Amendment Rights (Oxford University Press, 2006); American Schools: The Art of Creating a Democratic Learning Community (Rowman & Littlefield, 2009); We Must Not Be Afraid to be Free: Stories Of Free Expression in America (Oxford, 2011); and Faces of Learning: 50 Powerful Stories of Defining Moments in Education (Jossey-Bass, 2011).

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